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Sunday, October 23, 2016

by Kara Brandeisky, ProPublica.

Ten months after Edward Snowden’s first disclosures, three main legislative proposals have emerged for surveillance reform: one from President Obama, one from the House Intelligence Committee, and one proposal favored by civil libertarians.

All the plans purport to end the bulk phone records collection program, but there are big differences—and a lot they don’t do. Here’s a rundown.

President Obama’s proposal

What it would do: As described, the president’s proposal would prohibit the collection of bulk phone records. Instead, the government would seek individualized court orders every time it wants American phone metadata. The government would get the data from telecoms, which already keep it for at least 18 months.

The proposal would solidify some changes Obama has already made: For instance, since January, analysts have needed to get court approval before searching the phone records database. Also, NSA analysts have only been able to obtain records from people who are two “hops” away from a surveillance target—a target’s friends’ friends—rather than three “hops” away. Obama’s proposal would make both of those policies law.

What it wouldn’t do: It’s hard to know. The White House hasn’t released the actual text of the legislation, and lawmakers have yet to introduce it in Congress. But privacy advocates do have a lot of questions.

One thing the president hasn’t proposed: ending the bulk phone records program now. He could do that without any vote if he simply stopped asking the Foreign Intelligence Surveillance Court to reauthorize the program, as Senator Patrick Leahy (D-VT) has suggested.

The secret surveillance court’s last 90-day order for Verizon phone records has expired. President Obama reportedly wants the court to renew the program at least one more time, to give Congress a chance to pass new legislation. Until Congress acts, the NSA will continue collecting American phone records in bulk.

Of course, if President Obama were to act unilaterally, another president could later reverse his changes. If Congress passes his proposal, his reforms will have the force of law.

The president’s proposal also appears to address only one of the NSA’s many surveillance programs. It doesn’t seem to change the FISA Amendments Act, which allows the NSA to sweep up foreigners’ communications without a warrant. In the process, the NSA “incidentally” collects Americans’ communications.

In January, Obama said he would ask the Justice Department to limit the government’s authority to use any American communications collected while targeting foreigners. The administration has not offered any details yet. However, even the Senate’s biggest NSA critics say the FISA Amendments Act has been an effective counterterrorism tool, so Congress is unlikely to repeal it.

FISA Transparency and Modernization Act

What it would do: Very little to limit surveillance. Introduced by House Intelligence Committee chairman Rep. Mike Rogers (R-MI) and ranking member C.A. Dutch Ruppersberger (D-MD), this bill represents the wishes of the NSA’s biggest defenders in Congress.

The bill nominally bans the government’s bulk collection of phone records. Like Obama’s plan, telecoms would keep the records, but this in proposal, the government could request the records without a court order.

The bill also says it would prohibit the government from indiscriminate collection of other kinds of data, including “library circulation records,” “firearm sales records,” and “tax return records.” But the government could still use search terms to get the records it wants.

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